(Super. Ct. No. 62097686)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After officers responded to a 911 call from Denise N., they found both Denise and her boyfriend, defendant Thomas Keller Bennett, sporting injuries and smelling strongly of alcohol. An information charged defendant with corporal injury on a cohabitant and assault by means of force likely to produce great bodily injury. (Pen. Code, §§ 273.5, subd. (a)--count one, 245, subd. (a)(1)--count two.)*fn1  A jury found defendant guilty of both counts and the court sentenced him to seven years in state prison. Defendant appeals, arguing the trial court erred in admitting evidence of an uncharged domestic violence incident and sentencing error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Officers responded to a 911 call from a female who stated her boyfriend had beaten her. When they arrived, officers found Denise N., who told them defendant had choked and pushed her, causing injuries. An information charged defendant with inflicting corporal injury on a cohabitant and assault by means of force likely to produce great bodily injury. As to the corporal injury count, the information alleged defendant had suffered a 2004 conviction involving domestic violence and, as to both counts, that defendant had served two prior prison terms. (§§ 273.5, subd. (e), 667.5, subd. (b).)
The prosecutor filed an in limine motion seeking to admit evidence, pursuant to Evidence Code sections 1109 and 1101, subdivision (b), that defendant had committed several instances of prior domestic violence, including a 1994 sexual battery on Jo Ann B. (Pen. Code, § 243.4.) The court granted the motion.
The jury trial revealed the following facts.
Late one evening in March 2010, Deputy Joshua Barnhart was dispatched to investigate a 911 call from a female who said "she'd been beat [sic] up by her boyfriend and had fled her apartment and was at the neighbor's house." Deputy Haskell, Sergeant Clark, and Deputy Ames arrived at the scene shortly afterward.
The officers contacted Denise N., who stood in front of an apartment with her neighbors waving the officers toward them. A visibly shaken Denise was crying and upset. Her lips and nose were puffy and swollen, and there was dried blood around her mouth and on her shirt. Denise had a black-and-blue mark on her right eye and a mark on her neck. At trial, Barnhart identified photos depicting Denise's injuries that evening.
Officers detected a strong odor of alcohol on Denise's breath. Barnhart asked Denise what had happened. Denise appeared to understand Barnhart's words and responded coherently. Denise's speech was not slurred, and she did not need to hold on to anything to steady herself.
Denise told the officers that she and defendant had been drinking that night. The pair began to argue and defendant pushed her to the floor, calling her names. Defendant got on top of Denise and choked her with both hands, telling her, " 'You're gonna die, girl.' " Denise struggled to get free, but defendant put his hand over her mouth and began pushing her face against the floor, injuring her mouth. After Denise went limp, defendant released her. She ran to a neighbor's apartment and called 911. At the scene, Denise declined any medical attention.
Barnhart asked Denise if she wanted him to try and obtain an emergency protective order to keep defendant away from her. She agreed and Barnhart obtained an order, had it served on defendant, and gave a copy to Denise.
During cross-examination, Barnhart agreed that if Denise was a long-time abuser of alcohol, that might cause redness and puffiness in her face. However, he believed the puffiness in Denise's face went beyond being caused by alcohol and was consistent with her statement that defendant had choked her.
Denise told Barnhart her black eye was the result of a fistfight with another woman earlier that week. The black eye appeared old, and Denise never accused defendant of punching her. The smell of alcohol was stronger on Denise than on defendant. Barnhart acknowledged that people who drink habitually are better able to handle their alcohol and appear sober. He did not ask Denise how much she had drunk that night.
Barnhart spoke with defendant at the scene. Barnhart described defendant as angry and flippant. Defendant smelled of alcohol and had small scratches on his arms and dried blood on his nose, but no visible injuries to his face.
Defendant said Denise's injuries were caused by a fight she had had with another woman and adamantly denied any physical altercation with Denise. Any injuries not caused by that fight were caused by the dog. Defendant did admit restraining Denise, which caused the scratches on his arms. Defendant did not mention Denise drinking or being in any type of alcoholic blackout. After defendant's arrest, Barnhart questioned people at the neighboring apartment, but they were not very cooperative.
Relationship Between Defendant and Denise
Defendant and Denise had lived together in an apartment for six years. They began dating a few months before he moved in.
Denise still loved defendant when she testified at trial, and she considered him her fiance. She had seen defendant several times after the incident, about twice a week. Denise stated she was testifying ...